This is something I very rarely say — Ramesh Ponnuru is completely right about something. Ponnuru skewers this very silly article by Ian Millhiser at Prospect.org, in which Millhiser seeks to smear a limited-government interpretation of the Tenth Amendment to the U.S. Constitution by association with Michelle Bachmann, birthers, and every other form of far-right insipid nuttiness.
The Tenth Amendment, you might remember, says this:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Tenth Amendment is close to a dead letter in American jurisprudence; the unrestrained growth of the federal government reflects that modern courts have refused to find that it acts as any sort of brake on federal power. On the relatively rare modern occasions when the Supreme Court has found that the federal government has overstepped its enumerated powers, it has done so by interpreting the purported source of authority (such as the Commerce Clause). But many people feel this is incorrect. Is it the only possible reading of the Constitution? No. But it's an entirely plausible and principled one.
Millhiser is full of scorn for people who think that the Tenth Amendment might actually mean something — that it might prevent the federal government from exercising powers not specifically delegated to it. Millhiser expresses this scorn by dismissing limited-government advocates as "tenthers" (in an explicit attempt to associate them with truthers and birthers):
These efforts are all part of a movement whose members are convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations disfavored by conservatives. Indeed, while "birther" conspiracy theorists dominate the airwaves with tales of a mystical Kenyan baby smuggled into Hawaii just days after his birth, these "tenther" constitutionalists offer a theory that is no less radical but infinitely more dangerous.
Tentherism, in a nutshell, proclaims that New Deal-era reformers led an unlawful coup against the "True Constitution," exploiting Depression-born desperation to expand the federal government's powers beyond recognition.
In other words, if you believe in limited government, constrained by the enumerated powers of the constitution, you are part of the lunatic fringe. The only "normal" viewpoint is the one that Congress can do pretty much whatever it wants. Note that the New Republic has also picked up on the "tenther" slur.
Ponnuru immediately seizes upon the most ludicrous part of Millhiser's rant:
More important, there is something fundamentally authoritarian about the tenther constitution. Social Security, Medicare, and health-care reform are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance.
This is transcendentally silly and almost perfectly Orwellian. It's authoritarian to believe that central government authority should be strictly limited to the enumerated powers in the Constitution? It's authoritarian to limit the government from doing things when those things are "wildly popular"? That sounds to me like the essence of anti-authoritarian constitutional government. Millhiser sneers that conservatives pushing for courts to interpret the Tenth Amendment meaningfully are contradicting their standard rhetoric about "judicial activitsm." Whether or not that is true (and that's an entirely different post), Millhiser is unconsciously echoing decades of authoritarian, pro-"law-and-order", pro-censorship rhetoric from the far right. Millhiser sounds exactly like the folks who thought it was authoritarian to, for instance, overturn extremely popular flag-burning laws under the First Amendment.
The pieces in Prospect and the New Republic reflect that our level of national discourse continues to suck. People who use "tenther" are on a par with the asswipes who insist on saying "Democrat Party."
Last 5 posts by Ken White
- Gawker, Money, Speech, And Justice - August 18th, 2016
- Lawsplainer: No, Donald Trump's "Second Amendment" Comment Isn't Criminal - August 9th, 2016
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- A Rare Federal Indictment For Online Threats Against Game Industry - July 28th, 2016
- John Hinckley, Jr. and the Rule of Law - July 27th, 2016